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I 


62d  CoNGREfis  )  SENATE  \  ^^^^'^i^""' 

Sd  be^swu     S  (ISO.  240 


REPRESENTATIVE  GOVERNMENT  AND  THE 

COMMON  LAW 

A  STUDY  OF  THE  INITIATIVE  AND  REFERENDUM 


AN  ADDRESS 


DELIVERED  AT  THE  ONE  HUNDRED  AND  FORTY-THIRD  ANNUAL 
BANQUET  OF   THE   CHAMBER   OF   COMMERCE    OF   THE 
STATE  OF  NEW  YORK,  AT  THE  WALDORF- 
ASTORIA,  NOVEMBER  16,  1911 

BY 

HON.  EMMET  O^NEAL 

GOVERNOR  OF  ALABAMA 


C  ,  "" J«  1933 


PRESENTED  BY  MR.  BAILEY 
January  3,  1912. — Ordered  to  be  printed 


WASIilNGTON 

IDIL' 


8  D— 32 -2 -vol  35 4P 


V 


REPRESENTATIVE  GOVERNMENT  AND  THE  COMMON  LAW. 


Mr.  O'NEAL  said: 

Mr.  President,  Ladies,  and  Gentlemen:  Permit  me  to  express 
my  sincere  appreciation  of  the  honor  conferred  upon  me  and  the  State 
I  represent  by  your  gracious  courtesy  in  giving  me  this  opportunity 
to  raise  my  provincial  voice  under  the  auspices  of  this  ancient  asso- 
ciation. Yet  the  liigh  comphment  which  your  invitation  conveys 
does  not  prevent  me  from  recognizing  my  incapacity  to  do  justice 
to  this  subject  and  occasion  or  exempt  me  from  a  sense  of  humility 
in  being  accorded  the  privilege  of  standing  in  the  place  made  memo- 
rable by  orators,  soldiers,  and  patriots,  whose  great  names  have 
made  the  roll  of  your  guests  a  roster  of  distinguished  honor. 

From  the  far-off  day  when  a  shilling  a  plate  supplied  the  meager 
furnishings  of  your  bancjuet  board  to  this  good  hour  this  association 
has  stoocl  for  those  principles  of  business  probity  and  conservative 
government  upon  which  are  based  the  growth  and  power  of  a  Republic 
whose  institutions  are  founded  on  the  rights  and  fortified  by  the 
intelligence  of  the  people.  It  is  therefore  consistent  with  all  of  its 
history  that  in  this  hour  of  political  unrest  and  threatened  change 
it  should  invite  a  defense  of  that  scheme  of  government  which  has 
in  the  past  stoo  I  as  a  bulwark  of  defense  against  the  encroachments 
of  arbitrary  power  and  the  oppressions  of  the  inconstant  numerical 
majority. 

To  no  enlightened  people  can  any  subject  be  of  more  vital  moment 
than  the  making  of  the  laws  under  which  they  are  to  live  and  under 
which  they  expect  to  enjoy  those  rights  and  liberties,  not  only  neces- 
sary to  human  happiness,  but  essential  to  a  developing  civilization. 

The  empiricism  of  political  doctrinaires  and  the  vicious  experi- 
ments of  political  charlatans  have  ever  been  the  deadly  foes  of  wise, 
stable,   and  salutary  legislation.     Yet  there  must  be  a  lawmaking 
body  composed  either  of  the  people  themselves,  acting  directlv  in 
their   ori^anic   capacity   or   through   chosen   representatives.     l^uWy 
recognizing  that  fact,  the  wise  men  who  framed  the  Constitution  of 
the  United  States,   after  mature  reflection,  thorough  investigation, 
and  debate,  unanimously  discarded  the  system  of  direct  legislation 
^   and  established  a  representative  Republic  as  contradistinguished  from 
^\  A  social  or  jjure  democracy.     The  warning  lessons  of  history  iiad 
^    taught   them   that   the  so-called   republics  of   ancient   and   modern 
<V"  times,  tlirougli  the  absence  of  the  representative  principle,  had  ever 
been  found,  as  Madison  declared,  "spectacles  of  turbulence  and  con- 
tention, incompatible  with  personal  security  or  the  rights  of  property, 
I     and  had  in  general  been  as  short  in  their  lives  as  they  had  been 
.     violent  in  their  deaths." 

>L       It  lias  been  fiushionabie  of  late  years  for  many  who  masquerade 

jsf^^under  the  title  of  progressives  to  speak  in  sneering  terms  of  the  men 

T    who  established  our  system  of  free  government.     Yet  tho.se  men  had 

■i 

44H'77b 


4  REPRESENTATIVE   GOVERNJVrENT   AND   THE   COMMON    LAW. 

a  Junius  for  constitution  making  unequaled  in  any  other  age  of  the 
world.  They  were  not  only  profound  students  of  history,  but  were 
free  from  |)arty  bias,  passion,  or  prejudice.  They  had  accomplished 
successfully  a  revolution  against  the  greatest  military  and  naval 
power  of  the  world.  They  were  of  English  stock,  but  bred  under  new 
contlitions;  they  had  inherited  as  their  birthright  a  love  of  liberty 
and  a  hatreil  of  oppression.  It  has  been  tiul/  said  that  no  body  of 
men  ever  gathered  together  in  history  had  a  sublimer  trust  in  the 
wisdom  and  eternal  capacity  of  the  people  for  self-government.  Yet 
they  were  profoundly  impressed  with  the  conviction  that  there  never 
was  a  republic  as  formerly  constituted  which  had  not  terminated 
"its  fugitive  and  turbulent  existence"  with  the  destruction  of  the 
liberties  of  the  people.  They  agreed  with  the  sentiment  voiced  by 
Wilson  when  he  declared  that  the  doctrine  of  representation  in 
government,  which  was  altogether  unknown  to  the  ancients,  was 
essential  to  every  system  that  can  possess  the  qualities  of  freedom, 
wistlom,  and  energy.  They  had  renounced  the  divine  right  of  kings, 
but  were  unwilling  to  establish  the  divine  rights  of  majorities.  Direct 
action  by  the  people  they  deprecated.  They  were  seeking  to  erect 
a  government  to  endure  for  all  time — "a  government  of  laws  and 
not  of  men." 

In  embodying  in  the  Constitution  the  guaranty  of  a  republican 
form  of  government,  they  could  have  had  no  other  purpose  than  to 
interpose  a  barrier  against  the  encroachments  of  such  revolutionary 
political  vagaries  as  the  initiative  and  referendum.  I  therefore 
unhesitatingly  assert  that  a  study  of  the  history  of  our  Government 
clearly  establishes  that  those  who  claimed  to  be  inspu-ed  by  a  wise 
spirit  of  progress  and  profess  only  a  purpose  to  restore  popular 
government  by  the  introduction  of  the  system  of  initiative  and 
referendum  are  reactionaries,  guilty  of  the  folly  of  attempting  to 
revive  a  doctrine  unanimously  repudiated  by  the  wisdom  of  the 
fathers.  They  seek  not  merely  a  change  of  laws  or  established 
policies,  which  if  unwise  could  be  readily  repealed,  but  they  undertake 
to  so  alter  the  fundamental  law  of  each  State  as  to  weaken  or 
overthrow  the  representative  principle  and  inaugurate  a  radical 
revolution  of  the  basic  principles  on  which  the  fabric  of  American 
government  rests. 

I  admit  that  it  is  seriously  claimed  that  the  initiative  and  referen- 
dum would  not  cause  an  abandonment  of  representative  government, 
but  no  candid  mind  can  doubt  that  a  legislative  body,  Avith  its  func- 
tions and  prerogatives  exercised  by  the  people  at  large,  would  not 
long  exist  except  in  name.  The  weakening  of  its  powers  and  the  loss 
of  its  dignity  and  responsibility  would  be  the  inevitable  precursor 
of  its  decline,  speedily  followed  by  the  complete  prostration  of  the 
representative  principle. 

Any  constitutional  provision  which  weakens  or  impairs  the  power 
and  efficiency  of  either  of  the  three  coordinate  departments  of  govern- 
ment must  necessarily  weaken  and  impair  the  efficiency  and  har- 
monious action  of  the  whole.  Each  acts  as  check  upon  the  other, 
anti  if  the  power  and  vigor  of  any  department  be  impaired  or  over- 
thrown it  necessarily  unduly  increases  the  power  of  the  others,  thus 
destroying  that  harmonious  system  of  checks  and  balances  which  is 
the  distinguishing  feature  of  our  constitutional  system.     Wise  and 


REPRESENTATIVE   GOVERNMENT    AND   THE   COMMON    LAW.  5 

just  legislation  can  not  be  the  product  of  haste,  passion,  or  immature 
judgment.  To  overcome  the  evil  effects  of  sudden  and  strong  excite- 
ment and  of  precipitate  measures,  springing  from  caprice,  prejudice, 
personal  influence,  and  selfish  interests,  the  representative  system  was 
established.  That  deliberation,  investigation,  and  judicial  considera- 
tion which  is  essential  to  the  enactment  of  wise  laws  is  secured  by 
those  provisions  found  in  every  State  constitution,  which  in  manchi- 
tor}'  terms  requires  each  bill  to  be  submitted  not  alone  to  one  delibera- 
tive body,  but  in  turn  to  each  of  two,  and  to  be  considered  by  each  on 
three  successive  days. 

The  division,  therefore,  of  the  legislative  department  into  tvro 
separate  and  independent  branches  constitutes  one  of  the  most 
important  features  of  our  system  of  government.  One  is  generally 
composed  of  men  who  by  reason  of  their  short  terms  and  frequent 
elections  are  always  fresh  from  the  body  of  the  people  and  are  readily 
responsive  to  every  pressure  of  public  opinion.  The  period  of  their 
delegated  authority  is  too  brief  for  their  independent  judgment  to 
overcome  their  susceptibility  to  the  popular  will.  The  members  of 
the  other  body,  selected  b}^  a  larger  constituency,  representing  more 
varied  interests  and  further  removed  b}^  their  longer  terms  from  the 
passions  or  follies  of  the  hour,  may  justly  be  expected  to  exercise  with 
courage,  independence,  and  judgment  a  corrective  influence  upon 
legislation  born  of  demagogical  prejudice,  inspired  by  unwise  or 
visionary  political  theorists,  or  based  upon  some  Utopian  dream. 
The  tendency  of  the  one  is  to  impulsive  action,  and  of  the  other  to 
conservatism;  and  out  of  this  contest  of  opposing  forces  and  tliis 
clash  of  conflicting  thought,  illumined  by  debate  and  informed  by 
investigation,  comes  of  necessity  laws  into  the  construction  of  which 
there  enters  not  only  the  will  of  the  people,  but  those  elements  of 
moderation,  justice,  and  wisdom,  and  that  due  regard  for  the  rights 
of  the  minority,  which  are  inseparable  from  wise  and  just  legislation. 

Yet  we  are  asked,  through  the  system  of  the  initiative  and  refer- 
endum, to  abandon  every  safeguard  with  which  experience  and 
wisdom  have  surrounded  the  making  of  our  laws.  We  are  invited  to 
substitute  for  those  representative  bodies — whose  members,  through 
the  usually  required  qualifications  of  a  fixed  period  of  residence  and 
the  attainment  of  a  certain  age,  are  presumed  to  have  some  familiaiity 
with  the  spirit  of  our  institutions,  and  to  have  reached  maturity  of 
judgment,  and  to  possess  at  least  average  ability  and  character — the 
system  of  direct  legislation  by  the  whole  body  of  the  pe  )i)le.  including 
the  criminnl,  the  adolescent,  tlic  indiil'erent,  and  the  retainers  of 
special  interests. 

On  the  false  and  specious  pretext  of  restoring  popular  rule  and 
Correcting  the  evils  of  the  representative  system  we  arc  asked  to 
exchange  for  the  deliberate  examination  to  which  legislative  bills  are 
subjected,  and  through  witich  fatal  defects  and  artfully  concealed 
dangers  are  so  frer|nei)tly  (hscoveicd.  the  passions.  i\\(\  pi<'.ju dices,  and 
the  j)artisan  bias  which  every  popular  cam|)aign  develops,  substituting 
for  tlic  information  of  debate  the  appeal  of  the  demagogue,  and 
exchanging  for  the  opportunity  of  amendment  the  categorical  yes 
and  no  with  which,  under  the  initiative,  (he  voter  must  meet  tho 
subtle  and  involved  proposals  of  special  interests  or  the  wild  schcmos 
of  visionary  reformers.     [Applause.] 


6  REPRESENTATIVE   GOVERNMENT   AND   THE    COMMON    LAW. 

We  do  not  betray  distrust  of  the  people  by  heeding  the  unequivocal 
language  of  experience,  and  by  refusing  to  exchange  for  that  delibera- 
tion, independence,  and  conservatism  which  conies  from  subjecting 
every  law  to  the  critical  and  jealous  revision  of  two  legislative  cham- 
bers, and  by  which  unwise  and  dangerous  measures  are  less  apt  to 
proceed  to  the  solemnities  of  law,  the  independent,  unrestrained,  and 
unrestricted  action  of  the  numerical  majority. 

Through  the  oper^ion  of  the  initiative  a  further  and  more  potent 
check  on  intemperate  legislation  is  feTPoved  by  eliminating  the  power 
of  the  executive  to  rnnWuLnr  voto  nny  mnn^urr  enacted  by  direct  vote 
of  the  ppoplp-  Tln-oii.o;h  the  power  to  propose,  amend,  or  veto  legis- 
lation conferred  by  the  express  terms  of  almost  every  American 
constitution,  the  executive  is  made  a  part  of  the  lawmaking  depart- 
ment and  placed  on  guard  to  protect  the  interests  of  the  people 
against  the  enactment  or  evil  efTects  of  unjust,  unwise,  or  vicious 
legislation.  Yet,  under  the  system  of  the  initiative,  both  the  execu- 
tive and  legislative  cFepartments  are  sLcu'ii  of  their  constitutional 
powers.  Initiated  atid"  Enacted  by  d^ct  vote  of  the  people,  however 
unwise  a  law  may"  be,  however  much  it  may  destroy  the  rights  of 
property,  invade  constitutional  guaranties,  or  impair  personal  liberty, 
the  executive  is  powerless  to  intervene  to  protect  the  people  against 
the  blow  whirk.  from  the  folly  or  madness  of  the  hour,  they  might  aim 
at  themselves--'  The  only  recourse  would  be  the  courts,  wliich,  where 
the  system  of  recall  prevails,  destropng  judicial  independence,  would 
be  more  apt  to  register  popular  opinion  than  to  enunciate  decisions 
based  upon  well-settled  principles  of  law.  [Applause.]  The  messages 
of  the  governors  of  the  various  States,  heretofore  characterized  by 
boldness  and  independence  of  thought  and  useful  suggestions,  result- 
ing in  so  much  wise  and  beneficent  legislation,  would  largely  cease  to 
express  their  earnest  and  sincere  convictions,  but  instead  would 
become  merely  a  register  of  popular  passion  or  prejudice  and  the 
suggestions  of  impractical  theorists — the  transient  and  misdirected 
forces  of  popidar  opinion. 

It  is  established  by  the  experience  of  ever}^  section  that  until 
abuses  become  intolerable  the  demands  of  personal  affairs  are  too 
absorbing  and  the  burdens  of  that  pubhc  dut}''  which  citizenship 
imposes  upon  the  individual  are  too  heavy  or  exacting  to  permit 
more  than  a  mere  perfunctoiy  interest  in  public  matters.  In  my 
judgment,  therefore,  the  efficient  cause  for  tlie  larger  part'T5r"our 
political  ills  and  of  the  misgovernment  that  we  may  endure,  or  the 
treason  that  may  develop  in  legislative  bodies,  lies  in  the  indifference 
of  the  people  themselves  and  not  in  their  failure  to  directly  participate 
in  the  making  of  the  laws. 

^Mienever  the  people^e  aroused  and  demand  a  just  relief,  legisla- 
tors are  quick  to  hear  and  ready  to  obe3\  It  is  not  through  direct 
legislation  but  in  rn  aroused  public  conscience,  the  growth  of  a 
stronger  sense  of  civic  duty,  a  more  diligent  and  watchful  interest  by 
the  people  over  their  own  affairs,  that  we  must  rest  our  ultimate  hope 
of  permanent  political  reform.  The  forces  of  reform  are  too  often 
short-lived,  wliile  the  evil  influences  tliey  may  overcome  generally 
arise  from  defeat  with  renewed  vigor. 

An  antidote  to  this  indifference  of  the  people  and  a  safeguard 
almost  sufficient  in  itself  to  overcome  the  existence  of  a  venal  or 


REPRESENTATIVE   GOVERNMENT   AND   THE   COMMON    LAW.  7 

corrupt  legislature  can  be  found  in  the  high  sense  of  official  obliga- 
tion and  the  independent  exercise  by  the  great  majority  of  American 
executives  of  the  legislative  functions  vested  in  them  by  the  constitu- 
tions of  the  States. 

It_seems  to  be  assumed  that  under  the  system  of  the  initiative 
onlvThose  laws  would  be  proposed  which  a  legislature  under  the  con- 
trol or  domination  of  special  or  selfish  interests  would  refuse  to  pass, 
and  that  all  such  rejected  laws  would  be  in  the  interest  of  tl>3  people. 
I  can  not  bring  myself  to  the  adoption  of  this  pleasing  thought.  I 
fear  that  with  the  advent  of  this  political  millennium  there  will  still 
remain  here  and  there  some  unre^enerated  interests,  some  seeker  for 
special  privilege,  whose  desires,  in  imitation  of  the  practices  that 
prevailed  in  the  older  days,  could  still  be  concealed  under  the  guise 
of  some  fair-seeming  bill.  It  would  be  evervbodv's  business  to  act 
as  a  committee  to  examine  it,  to  expose  its  fallacies,  or  to  warn  the 
public  against  its  insidious  purposes.  The  necessary  result  would  be 
that  nobody  would  give  it  careful  scrutiny  or  supervision.  It  would 
not  be  subject  to  such  amendment  as  wisdom  or  experience  might 
suggest.  It  must  be  accepted  or  rejected  in  the  exact  form  and  terms 
in  which  it  is  proposed.     It  would  not  even  be  read  aloud  once  in  the 

Ercsence  of  all  whose  duty  it  would  be  to  vote  upon  it,  and  it  might 
ecome  a  law  by  the  vote  of  a  single  individual  who  had  never  read 
it  until  he  cast  his  ballot.  It  is  not  improbable  that  there  might  be 
an  astute  or  unscrupulous  interest  behind  it,  giving  it  secret  aid  and 
comfort,  and  although,  with  a  greedy  legislature  looking  on  from  afar 
off,  there  would  not  be  even  any  Adams  County  votes  for  sale,  neither 
would  there  be  anvone,  as  was  the  governor  in  former  times,  before 
his  power  had  been  overt lu*own  by  tliis  modern  political  reform, 
charged  with  the  duty  of  protecting  the  public  against  its  own  indif- 
ference or  checking  the  misguided  career  of  public  opinion.  There 
would  be  no  magic,  from  the  destruction  or  overthrow  of  the  legisla- 
ture, by  which  the  ordinary  citizen,  to  whom  political  duty  is  but  an 
incident,  couJd  be  converted  into  an  alert,  vigilant,  and  well-informed 
legislator.  To  quaJif}'  a  citizen  to  vote  intelligently  upon  a  law 
involves  a  degree  of  investigation  and  attention  to  detail  and  a  quality 
of  thouglit  that  will  be  voluntarily  assumed  onl}^  b}''  the  elector  who 
appreciates  to  an  extraordinary  degree  the  dut}""  which  his  citizen- 
ship imposes,  or  an  individual  who  has  in  the  measure  a  personal 
interest  not  consistent  with  the  public  good. 

With  the  initiative  in  operation  it  would  be  the  sheerest  folly  to 
suppose  that  the  number  of  laws  would  come  within  the  compass  of 
ihe  ordinary  man's  serious  and  considerate  examination,  and  in  the 
ronsidcration  of  matters  wliicli  furnish  opportiuiity  for  demagogical 
appeals  and  class  or  racial  prejudice  the  very  purpose  for  which  gov- 
ernment exists  would  often  be  defeated,  and  the  rights  of  a  licljiless 
minority,  no  longer  protected  by  the  safeguards  now  secured  by  every 
American  constitution,  would  be  ruthlessly  sacrificed.     [A|)j)lausc.) 

I  assume  that  no  one  will  controvert  the  proposition  tliat  la\vs 
ought  to  be  made  in  a  sjjirit  ns  im[)ersonuI,  with  a  sense  (A  duly  as 
high,  with  a  conscience  as  much  bound  by  the  solcnuiity  of  an  oath, 
with  a  mind  as  much  informed  by  argument  and  debate,  and  sur- 
rounrled  by  an  atmosphere  a.s  much  removed  from  l>ins  nnd  passion 
as  that  in  uhirli  thev  are  ef)nsfriiefl  and   enforced . 


8  BEPRESENTATIVE   GOVERNMENT  AND   THE   COMMON    LAW. 

To  discard  wcll-cstablishod  methods  of  procedure  by  which  truth  is 
ascertained  and  ji'stice  administered  in  our  criminal  courts  and  to 
submit  the  question  of  the  guiJt  or  innocence  of  a  person  charged 
with  crime  to  the  ballot  of  the  electorate  would  shock  the  public 
conscience.  Yet  to  say  that  men  without  any  more  responsibility 
than  is  imposed  by  their  own  sense  of  duty,  influenced  possibly  by 
malice,  prejudice,  or  self-interest,  without  legal  check  or  constitu- 
tional limitation,  could  by  the  mere  brutal  power  cf  a  numerical 
majority  take  away  the  most  sacred  rights  or  impose  the  most  intoler- 
able burdens  upon  a  helpless  minority  would  be  equally  as  shocking 
to  every  man  whose  sense  of  ji  stice  was  not  blunted  by  the  poison  of 
false  and  vicious  political  theories. 

If  the  claim  that  opposition  to  the  initiative  discloses  a  distrust  of 
the  people  be  true,  then  there  is  no  constitutional  limitation  by 
which  the  people  restrain  themselves  which  can  not  be  regarded  as 
a  reproach.  Kot  a  criminal  statute  has  ever  been  adopted  which 
does  not  in  effect  affirm  the  possible  existence  of  a  class  of  people 
wlio  may  prove  unworthy  of  public  trust  and  who  might  by  their 
ballots,  after  the  commission  of  a  crime  but  before  conviction,  fasten 
upon  their  fellowmen  an  unjust  and  onerous  law. 

Opposition  to  the  initiative,  then,  is  not  a  declaration  of  distrust  of 
the  people,  but  a  recognition  of  that  sound  political  truth  that  in  the 
multitudinous  interest  and  varied  activities  that  go  to  make  up  the 
sum  of  a  great  people's  life,  there  must  be  to  a  qualified  extent  dele- 
gations of  public  duties  and  well-considered  di\4sions  of  public  power 
and  public  responsibility.  To  combat  this  political  heresy  is  not  to 
distrust  the  people.  We  would  ignore  the  unmistakable  teaching  of 
history  if  we  failed  to  recognize  that  every  nation  which  has  achieved 
political  and  orderly  liberty  has  done  so  through  the  representative 
system  and  that  every  Government  which  has  abandoned  it  for  the 
despotism,  of  a  monarchy,  or  for  the  turbulence,  tyranny,  or  uncer- 
tainty of  an  unlimited  democracy  has  fallen  into  decay  and  sufl'ered 
the  loss  of  its  animating  and  sustaining  principle.  [Applause.]  Eng- 
land's Parhament  has  never  yielded  its  prerogative  nor  have  her  peo- 
ple ever  established  a  commune.  When  the  first  gleam  of  political  and 
civil  hberty  that  ever  lightened  the  darkness  in  which  the  Russian 
peasant  moved  made  its  appearance  it  was  contemporaneous  with 
the  establishment  of  a  Duma. 

Unless  this  political  heresy  is  checked  the  hosts  of  socialism,  reen- 
forced  by  selfish  and  time-serving  politicians  and  recruited  by  all  the 
elements  of  discontent,  will  soon  direct  their  attacks  against  the  Fed- 
eral Government  itself  and  gradually  sap  and  undermine  the  founda- 
tions of  our  free  institutions. 

It  is  claimed  by  the  advocates  of  the  initiative  that  that  system  is 
necessary,  because  representatives  in  the  legislature  can  not  be 
elected  who  are  possessed  of  that  capacity  and  fidelity  to  duty  which 
fits  them  to  properl}'"  perform  the  high  functions  of  their  great  office. 
Such  a  position,  it  occurs  to  me,  not  only  plainly  evidences  a  distrust 
of  the  people,  but  is  based  on  the  assumption  that  the  people  are  inca- 
pable of  self-government.  If  it  be  true  that  the  people  are  so  sunk 
m  abject  subservience  to  political  bosses,  so  tied  to  the  wheels  of  the 
political  machines,  that  unworthy  legislators  can  alone  be  elected, 
where  would  be  the  limitation  on  the  power  of  those  bosses  or  of  that 
political  machine  to  force  through  the  same  electorate  the  passage  of 


EEPRESENTATIVE   GOVERNMENT   AND   THE   COMMON    LAW.  9 

any  law's  that  their  selfish  interests  might  dictate  when  every  safe- 
guard which  now  surrounds  their  enactment  is  removed? 

As  an  American  citizen,  I  am  indeed  proud  to  say  that  it  is  not  true 
that  the  men  who  have  represented  the  sovereignty  of  the  States, 
who  make  the  laws  wliich  protect  us  in  our  lives  and  property,  who 
levy  anfl  disburse  our  taxes  and  frame  our  civil  and  criminal  laws,  are 
unworthy  and  corrupt.  There  may  be  isolated  instances  where  mem- 
bers of  the  legislatures  have  betrayed  the  interests  of  the  people,  just 
as  there  have  been  isolated  instances  of  wholesale  corruption  among 
the  people  in  some  localities,  but  the  fault  lies  not  in  the  system  but 
in  the  frailties  of  human  nature.  The  legislators  of  the  various  States 
of  the  Union  have  been,  as  a  general  rule,  the  picked  and  chosen  men 
of  the  communities  from  which  they  have  come  and  have  been  honest, 
wise,  and  patriotic.  From  whose  hands  have  come,  during  the  cen- 
tury or  more  of  our  existence,  those  laws  under  which  we  have  grown 
and  prospered  and  held  a  higher  measure  of  freedom  than  has  ever 
come  to  the  lot  of  any  people?  The  statute  books  of  the  American 
States  are  filled  with  wise  and  beneficent  laws,  through  the  operation 
of  which  they  have  grown  into  great  and  powerful  Commonwealths. 
It  was  a  great  statesman,  from  whose  lips  words  of  idle  or  extrava- 
gant praise  never  fell,  who  said: 

The  statute  books  of  these  Commonwealths  can  be  read  by  the  patriotic  without  a 
blush.  1  am  not  afraid  to  compare  them  with  the  200  parliaments  through  which  for 
800  years  the  freedom  of  Encjland  has  broadened  down  from  precedent  to  precedent. 

Members  of  the  legislatures  of  the  different  States  are  the  agents 
and  direct  representatives  of  the  people,  and  if  it  be  true  that  as  a 
whole  they  are  incompetent,  unworthy,  and  corrupt  it  would  follow 
necessarily  that  the  masses  of  the  people  from  whom  they  spring 
and  from  whom  they  are  selected  were  also  either  corrupt  or  crimi- 
nally indifferent  to  their  interests  or  -liberties^-  They  possess  the 
same  characteristics  as  the  people  from  whom  they  have  come,  and  if, 
after  repeated  trials  and  selections,  the  community  can  not  secure  an 
intelligent  and  honest  man  to  represent  it,  I  would  not  like  to  live 
under  laws  initiated  or  adopted  by  the  sovereignty  of  that  people. 
[Applause.] 

it  is  a  sound  governmental  principle  that  political  power  shoidd 
always  be  accompanied  with  responsibility  located  and  identified. 
Where  responsibility  can  not  be  placed  it  does  not  exist,  and  an 
irresponsible  j)owcr  in  government  inevitably  leads  to  oppression  or 
the  loss  of  liberty.  That  this  responsibility  shall  not  be  evaded 
under  our  representative  system  of  government,  the  constitution  of 
every  State  recpiires  that  the  legislative  record  shall  disclose  the 
presence  or  tlie  absence  of  each  legislator,  his  vote,  and  his  position 
on  every  bill.  Where  in  the  system  of  the  initiative  would  this 
sobering  knowledge  of  responsibility  rest?  What  right  would  one 
citizen  have  to  call  another  to  account?  Kach  would  represent  only 
hinisclf,  and  with  the  utter  lack  of  responsibility  on  the  part  of  the 
lawmaking  body  arbitrary  and  iiTCsponsible  power  would  be  enthroned 
and  the  reign  of  anarchy  commence. 

We  should  not  overlook  the  fjict  that  untler  the  initiative,  wherever 
introduced,  the  State  constitutions  can  ho  altered  or  amended  with 
greater  case  and  facility  than  even  an  ordinary  statute  under  the 
present  representative  system.  No  submission  of  the  |ir()|)()s(>(l 
amendment  by  a  two-thirds  vote  of  the  legi.slaturo  is  required.     A 

448?75 


10         RPiPBESENTAlTVE    GOVEKNMENT   AKD    THE    COMMON    LAW. 

small  per  cent  of  the  voters  can  at  any  time  propose  the  most  radical 
or  far-reacliing  constitutional  changes  and  the  fundamental  law  which 
our  people  have  ever  been  taught  to  regard  as  a  shield  of  defense 
agiiinst  the  attacks  of  irresponsible  power,  which  has  ever  been  hedged 
around  with  those  difficulties  of  approach  so  essential  to  stable  govern- 
ment, would  become — 

As  variable  as  the  shade 

By  the  light  quivering  aspen  made. 

We  all  recognize  the  truth  of  Madison's  declaration  that  too  much 
legislation  is  one  of  the  evils  of  republican  government,  and  hence 
every  recent  constitution  has  wisely  adopted  numerous  restrictions 
and  limitations  on  legislative  power.  Yet  we  know  that,  notwith- 
standing all  these  limitations,  every  State  has  been  burdened  with 
too  much  legislation — an  ever-increasing  flood  of  local  and  private 
and  general  law — destroying  all  uniformity  and  harmony  in  the  law 
itself,  till  in  the  multiplicity  of  statutes  the  citizen  is  vexed,  harassed, 
and  confused.  Yet  this  wise  tendency,  so  cleaily  manifested  in  all 
modern  constitutions,  to  check  the  ever-increasing  volume  of  laws  on 
every  conceivable  subject  is  now  to  be  denounced  as  a  political 
blunder,  and  pernicious  legislative  activit}''  is  to  be  supplemented  by 
laws  enacted  by  the  direct  vote  of  the  people.  If  hasty,  ill-advised, 
and  ill-considered  legislation  still  remains  as  one  of  the  vices  of  our 
representative  system,  notwithstanding  all  the  checl«  and  limitations 
on  legislative  action  found  in  our  State  constitutions,  is  it  not  the 
madness  of  folly  to  undertake  to  supplement  the  present  legislative 
activity  by  authorizing  the  making  of  additional  laws  by  a  direct 
vote  of  the  people  and  without  any  of  the  safeguards  secured  by 
deliberation,  investigation,  amendment,  debate,  or  constitutional 
restrictions  ? 

We  may  be  impatient  with  our  State  legislatures,  but  the  remedy 
is  not  to  sap  or  weaken  their  powers  but  to  elevate  their  tone  and 
standard,  to  reorganize  them  along  simpler  lines,  and  to  make  them 
the  real  organs  of  public  opinion,  checking  the  evil  eflects  of  hasty 
and  ill-considered  legislation,  and  giving  expression  to  the  cool, 
deliberate,  and  mature  judgment  of  the  people. 

Much  has  been  heard  in  late  years  of  big  business.  The  biggest 
business  conducted  m  this  country  is  that  involved  m  the  government 
of  the  various  States,  Is  it  not  wise  to  apply  sound  business  princi- 
ples in  administering  the  affairs  of  these  great  public  organizations  ? 
What  would  be  the  fate  of  any  of  the  great  private  corporations  if  their 
directors,  elected  by  the  stockholders,  representing  and  legislating  for 
them  and  responsible  to  them,  were  discliarged  and  the  whole  mass 
of  stockholders  as  a  body,  some  wise,  some  foolish,  some  mere  children, 
many  entirely  ignorant  of  business  principles,  few  moved  by  the 
common  good,  most  animated  by  the  desire  to  secure  personal  gain, 
should  undertake  to  direct  their  policies  ?  In  the  management  of 
the  corporation  good  government,  with  the  highest  returns  and  best 
results,  is  the  object  sought  to  be  achieved.  There  can  be  no  differ- 
ence in  kind  in  the  principles  applicable  to  each,  and  experimental 
policies  dangerous  in  their  tendencies  ought  to  be  as  carefully  avoided 
m  the  one  as  in  the  other. 

That  doubtful  political  pohcies  ought  not  to  be  pursued  except  in 
the  most  extreme  cases  is  a  sound  rule  of  conduct  that  1  would  be 
happy  to  bring  home  to  every  thoughtful  and  patriotic  American 
citizen,  for  there  is  abroad  in  the  land  a  dangerous  tendency  which 


EEPEESENTATIVE  GOVEENMENI  AND  THE  COMMON    LAW.  U 

would  seek  to  convert  eveiy  governmental  agency  into  a  political 
experimental  station.  Unfoi  tunately,  tliere  is  too  evident  among  our 
people  a  love  of  novelty  and  "passion  for  changing  customs  and 
destroying  old  institutions,"  which  would  exchange  our  proved  and 
tried  system  for  one  which,  however  alluring  to  the  political  theorist, 
has  always  preceded  the  fall  of  stable  government  and  the  loss  of 
political  liberty.  Were  we  without  any  other  remedy  and  our 
condition  was  as  deplorable  as  the  propagandists  of  this  new  specific 
for  all  our  political  ills  declare,  for  my  own  part  I  would  still  hold  fast 
to  the  faith  of  the  fathers,  rather  than  attempt  "to  upset  an  ancient 
system  hallowed  by  long  use  and  deep  devotion." 

If  any  proposed  reform  seeks  to  weaken  or  overthrow  a  system 
whose  introduction  has  been  coincident  with  popular  liberty,  let  us 
not  hesitate  to  give  it  the  stamp  of  our  stern  disapproval.  If  free 
institutions  are  to  continue,  ours  must  be  a  representative  govern- 
ment. As  declared  by  your  distmguished  guest,  Hon.  James  Bryce, 
government  by  representation  is  a  prmciple  derived  from  the  oldest 
customs  of  the  Anglo-Saxon  race.  Students  of  English  constitutional 
history  can  trace  the  existence  of  representative  assemblies  to  every 
period  of  its  national  existence,  even  to  remote  antiquity.  From  the 
earliest  forms  of  tribal  government  down  to  the  present  day  there 
was  some  form  of  legislative  assembly  representing  the  people, 
framing  their  laws,  and  assisting  in  their  government.  With  all  its 
defects,  a  representative  system  is  the  best  the  wisdom  and  experience 
of  man  has  yet  devised.     [Applause.] 

But  assuming  that  venal  legislators,  intrenched  in  power,  deny  the 
statutes  they  should  enact,  and  refuse  to  give  expression  to  the  calm 
and  deliberate  judgment  of  the  people,  there  is  and  will  always  h& 
found  in  the  flexibility  of  the  common  law,  in  its  adaptation  of  old 
principles  to  meet  changing  conditions,  a  source  of  power  with  which 
the  courts  are  amply  armed  to  curb  the  aggressions  of  special  interests. 
The  common  law  I  may  define  to  be  that  code  of  fundamental  prin- 
ciples essential  to  civil  liberty  and  political  freedom,  growing  out  of 
common  custom  and  natural  equity,  wliich  were  brought  by  our 
English  ancestors  to  these  shores,  and  out  of  which  the  civil  rights 
and  the  political  liberty  of  the  English  people  was  wrought  and  in 
which  they  are  securely  rooted,  and  whoso  harshness  has  been 
ameliorated  in  the  progress  of  an  advancing  civilization. 

It  has  been  truly  said: 

One  of  the  great  merits  of  this  great  system  is  that  it  docs  not  consist  in  a  series  of 
detailed  practical  rules  established  by  positive  provisions  and  adapted  to  the  pre- 
cise circumstances  of  particular  cases,  which  would  become  obsolete  and  fail  when 
the  practice  and  course  of  business  to  which  they  ajjply  should  cease  or  change,  but^ 
instead,  of  a  few  broad  and  comprehensive  principles,  founded  on  reason,  natural 
justice,  and  eidit,'htcned  public  policy,  modified  and  adapted  to  the  circumstances 
of  all  the  particular  cases  which  full  within  it. 

The  common  law  grew  with  society,  not  ahead  of  it.  As  society  became  more  com- 
plex anrl  new  demands  were  made  upon  the  law  by  reason  of  new  circumstances,  the 
courts,  originally  in  England,  out  of  the  storehouses  of  reason  and  good  sense  declared 
the  common  law. 

As  was  said  by  a  groat  judge: 

The  common  law  Is  a  beautiful  system  conUiining  the  wisdom  and  experience  of 
ages.  Like  the  people  it  ruled  and  jirolcctijd,  it  wiw  HiMij)le  and  grew  in  Us  infancy, 
and  became  enlarged,  imjirovcd,  and  [xilih^hcd  as  llu;  nalion  advanced  in  civilization, 
virtue,  and  intelligence.  Adapting  itself  to  the  conditions  and  circumHtanccs  of  the 
people  and  relying  upon  them  lor  its  admini.-tlralion,  it  neccr<sarily  improved  as  the 
condition  of  the  people  wa."  elevated 


12  REPRESENTATIVE    GOVERNMENT   AND    THE    COMMON    LAW. 

As  the  principles  of  natural  justice  and  a  sound  public  policy  do  not 
change,  the  common  law,  which  springs  from  them,  is  not  subject  to 
decay,  nor  does  it  become  obsolete  with  changing  circumstances  and 
dili'ering  conditions.  It  is  to-day  "fresh  m  the  vigor  of  immortal 
youth,"  as  potent  a  living  principle  as  it  was  when  administered  by 
^lansfield  or  by  Hale,  and  in  its  ample  powers  the  courts  will  alwaj^s 
find  abundant  authority  to  meet  every  need  of  government  or  society. 

However  reluctant  legislators  may  be  to  act  it  will  be  a  strange 
case  indeed  in  which  the  common  law  principles  to  fit  and  to  protect 
may  not  be  found. 

As  a  coroUar}^  to  the  initiative,  the  referendum  is  proposed  to  com- 
plete the  wreck  of  representative  government,  and  as  a  fitting  device 
to  securely  accomplish  the  atrophy  of  the  legislative  functions  and  to 
reduce  legislatures  from  coordinate  departments  of  government  to  a 
body  of  mere  clerks  engaged  in  performing  ministerial  duties.  When 
legislatures  are  compelled  to  submit  their  work  to  the  approval  of  the 
electorate,  there  would  no  longer  rest  on  the  electors  the  duty  of 
selecting  men  of  character  and  capacity  to  represent  them;  nor  will 
the  members  of  such  bodies  feel  the  weight  of  that  responsibility 
whicii  ought  to  follow  public  office.  That  the  character  of  legislation 
produced  bv  such  a  body  would  lack  both  wisdom,  strength,  and  vigor 
seems  too  evident  to  discuss. 

It  is  no  argument  in  favor  of  the  referendum  to  say  that  it  is  the 
course  followed  with  reference  to  constitutions.  A  constitutional  con- 
vention is  under  no  necessity  to  submit  the  product  of  its  labors  to  the 
people  for  ratification.  While  it  usually  does.so  as  a  matter  of  choice, 
m  doing  so  from  its  own  free  will  it  takes  more  pride  in  presenting  to 
the  people  work  well  done,  and  is  wholly  lacking  in  that  sense  of 
inferiority  whicli  under  a  compulsory  submission  can  but  result  m 
indifferent  service. 

It  is  m\  earnest  hope  that  the  far-reaching  and  disastrous  effects  of 
these  proi)osed  changes  will  be  fully  understood  by  all  my  countrymen 
before  they  give  them  the  sanction  of  their  approval. 

I  am  deeply  impressed  with  the  conviction  that  their  adoption  would 
so  fundamentally  change  the  entire  structure  of  our  political  system  as 
to  amount  to  revolution  and  destroy  the  whole  theory  upon  which  our 
Government  rests  and  upon  which  the  permanence  and  vitality  of  our 
institutions  depend. 

Let  us  a,ll  here  to-night,  inspired  by  the  patriotic  memories  of  this 
ancient  association,  consecrate  ourselves  anew  to  the  service  of  our 
States  and  the  Nation,  and  here  firmly  resolve  that  that  splendid  struc- 
ture of  constitutional  government  builded  by  the  wisdom  and  loving 
care  of  the  fathers,  and  under  whose  fostering  shelter  we  have  enjoyed 
the  greatest  measure  of  freedom,  happiness,  and  prosperity  known  to 
man,  shall  not  be  defaced  or  impaired  by  the  attacks  of  sincere  but 
misguided  men — of  time-serving  politicians  or  of  political  charlatans. 
[Applause.] 

That  the  Providence  whose  guidmg  hand  has  been  so  manifest  in  all 
the  course  of  our  national  existence  will  still  lead  us  safely  through 
these  days  of  doubt  and  uncertainty  I  confidently  believe.  In  the 
genius  of  the  race,  I  have  an  abiding  conviction  that  there  is  and 
always  will  be  found  a  redeeming  and  protecting  spirit  to  walk  beside 
us  and  through  all  trials  and  from  all  shadows  bring  us  unharmed 
into  that  fidler  light,  to  which  in  the  speedy  progress  of  our  national 
evolution  we  are  surely  tending.     [Applause.] 

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